Wambolt v. New Brunswick Housing Corp., (2015) 437 N.B.R.(2d) 100 (CA)

• Judge: Richard, J.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 28, 2015
• Jurisdiction: New Brunswick
• Citations: (2015), 437 N.B.R.(2d) 100 (CA)

Wambolt v. NBHC (2015), 437 N.B.R.(2d) 100 (CA);

    437 R.N.-B.(2e) 100; 1140 A.P.R. 100

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2015] N.B.R.(2d) TBEd. MY.012

Renvoi temp.: [2015] N.B.R.(2d) TBEd. MY.012

Jenn Helen Alice Wambolt and James Russell Wambolt (appellants) v. New Brunswick Housing Corporation (respondent)

(37-15-CA)

Indexed As: Wambolt v. New Brunswick Housing Corp.

Répertorié: Wambolt v. New Brunswick Housing Corp.

New Brunswick Court of Appeal

Richard, J.A.

April 29, 2015.

Summary:

Résumé:

The Wambolts were evicted from the premises they occupied as their home. The eviction was effected pursuant to an order of a judge of the Court of Queen's Bench, which was in the form of an Order for Possession issued pursuant to the Landlord and Tenant Act. The Wambolts sought leave to appeal the eviction order and asked for a stay of its execution.

The New Brunswick Court of Appeal, per Richard, J.A., dismissed the motion on the grounds that leave to appeal was not required, and a single judge of the Court of Appeal was not the proper forum for them to seek a stay of execution of the Order for Possession.

Landlord and Tenant - Topic 6607

Termination, forfeiture and reentry - Eviction - Writ or order for vacant possession - Stay of proceedings - The Wambolts were evicted from the premises they occupied as their home - The eviction was effected pursuant to an order of a judge of the Court of Queen's Bench, which was in the form of an Order for Possession issued pursuant to the Landlord and Tenant Act - The Wambolts sought leave to appeal the eviction order and asked for a stay of its execution - The New Brunswick Court of Appeal, per Richard, J.A., dismissed the motion - The order pursuant to which the eviction was effected was a final order for which leave to appeal to the Court of Appeal was not required - Section 75 of the Landlord and Tenant Act provided that "[a]n appeal lies to the Court of Appeal from the order of the Judge granting ... an Order for Possession" - Section 76 of the Act provided that "[w]here a notice of appeal has been served the Judge may make an order staying the Order for Possession" - The term "Judge" necessarily referred to the judge who issued the Order for Possession - While rule 62.26 of the Rules of Court generally governed an application for a stay of execution pending the determination of an appeal, it was inapplicable in this case by operation of rule 1.02, which provided that the "rules apply to all proceedings in the Court of Queen's Bench and the Court of Appeal unless some other procedure is provided under an Act" - Thus, the forum for seeking a stay of execution of an Order for Possession issued under the Landlord and Tenant Act was the Court of Queen's Bench, and the condition precedent was that a Notice of Appeal must have been served.

Practice - Topic 8871.2

Appeals - Leave to appeal - Whether required - [See Landlord and Tenant - Topic 6607 ].

Cases Noticed:

Lemay v. Peters (2014), 425 N.B.R.(2d) 336; 1107 A.P.R. 336; 2014 NBCA 59, refd to. [para. 1].

Statutes Noticed:

Landlord and Tenant Act, R.S.N.B. 1973, c. L-1, sect. 75 [para. 3]; sect. 76 [para. 4].

Rules of Court (N.B.), rule 1.02, rule 62.26 [para. 4].

Counsel:

Avocats:

Jenn Helen Alice Wambolt and James Wambolt, appeared in person;

Paul C. Levesque, for the respondent.

This motion was heard on April 28, 2015, before Richard, J.A., of the New Brunswick Court of Appeal, who delivered the following decision in both official languages on April 29, 2015.